But I thought we didn’t have alimony in Texas…

We’ve talked about who gets what property and who gets what debts. Now the topic that fascinates all divorcing couples (and generally frightens ex-husbands-to-be): alimony. Here’s the short answer: we don’t have statutory alimony in Texas. We have spousal maintenance instead.

What’s the difference, you ask? When you think alimony, you get a picture in your head of an ex-husband paying a monthly check to his ex-wife for the rest of his natural life, while she drinks margaritas by the pool. Or maybe that’s just me, and I watch too many movies. Whatever your notion of alimony, the Texas Family Code defines spousal maintenance as: "an award in a suit for the dissolution of marriage of periodic payments from the future income of one spouse for the support of the other spouse."

But that sounds like the same thing, doesn’t it? The first thing to notice is that the definition is gender-neutral. Either husband or wife may be ordered to pay maintenance to the other. Reading on in the Family Code, we learn that there are only two ways to be even ELIGIBLE for maintenance. First, if the spouse who is ordered to pay was convicted of an act of family violence AND that act occurred within two years before the date the divorce was filed or during the divorce. Or second, if the marriage lasted ten years or longer, the spouse seeking maintenance doesn’t have enough property (including what he/she got in the divorce) AND 1) cannot support himself/herself through employment because of an incapacitating disability, 2) has custody of a child with a disability requiring such constant care that the spouse cannot be employed outside the home, OR 3) clearly lacks earning ability in the labor market adequate to support his/her minimum reasonable needs. Let’s break those down. You can get maintenance if you ex was convicted of beating you (or your kids) within the last two years or during your divorce. Or if you were married more than 10 years and are completely disabled yourself, have a seriously disabled child or are completely unemployable. Not very promising if you were looking forward to that check every month, but probably a bit of a relief if you were concerned about paying it.

Suppose, however, you are eligible for spousal maintenance. There is, once again, a list of factors that the court will look at in determining your maintenance payments. An abbreviated list of these factors is as follows:

  • Your financial resources, including what you got in the divorce
  • Your education and employment skills, or the time necessary to acquire skills
  • How long you were married (has to be at least ten years)
  • Your age, employment, history, earning ability and physical and emotional condition
  • The ability of your ex to pay and still meet his/her own minimum needs
  • Bad acts by either of you that resulted in excessive spending, destruction of community property, fraud, etc.
  • Your financial resources as compared to your ex’s, including medical and retirement benefits
  • Contribution by one spouse to the education or increase in earning power of another (i.e. you put your ex through medical school)
  • The property you each brought into the marriage
  • Any contributions either of you made as a homemaker
  • Any marital misconduct on your part
  • Your efforts to pursue employment counseling

Say the judge has awarded you maintenance. How long can you keep getting it? Not too long. The Texas Family Code says that an order for maintenance may not be in effect for more than three years from the date it is ordered. The Code also says that the courts must limit the duration of a maintenance order to the SHORTEST reasonable period that allows the spouse receiving payments to meet his/her minimum needs by finding a job or developing a marketable skill. There are exceptions to this, but they involve total or near total disability, caring for an infant child, or some other extremely (and I do mean extremely) good reason.

Important note: the above discussion deals with spousal maintenance as part of a final divorce decree. Spousal maintenance MAY be awarded by the judge to one spouse while the divorce is going on in court. This type of spousal maintenance does not require all the hoop-jumping that “regular” maintenance requires, because it is by nature only a short-term award. This award will be part of the Temporary Orders that the court issues. A full discussion of temporary orders is beyond the scope of this guide. For our purposes, they are just what they sound like they are: a list of things the court commands you to do in the meantime while your case is ongoing.

As always, if you and your ex-to-be are making your own settlement agreement, you can choose to put an obligation to make alimony payments into that contract. There are certain tax-related reasons for doing so, that are beyond the scope of this guide. The contract will be enforceable by the court even though you could not have been awarded maintenance by the court. You agree to it, you are stuck with it.

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